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James Island couple appeals custody case to U.S. Supreme Court

By BRUCE SMITHAssociated Press

Oct 6 2012 12:33 am

Veronica was 2 years old when she went trick-or-treating last year on James Island. Melanie Capobianco/AP

A James Island couple has asked the U.S. Supreme Court to weigh in on a ruling sending their Native American adoptive daughter back to her biological father in Oklahoma under the federal Indian Child Welfare Act.

An attorney for Matt and Melanie Capobianco, in a 142-page petition filed with the high court Monday, said the justices should accept the case to settle uncertainty over how the 1978 act should be interpreted.

“State courts have wrestled openly for decades over the meaning and the operation” of the act, attorney Lisa Blatt wrote.

Blatt wrote that the questions the court needs to consider are whether a non-custodial parent can invoke the act to block an adoption initiated by a non-Indian parent under state law.

The other issue, she wrote, is whether the act’s definition of parent includes an unwed biological father who does not have legal status as a parent under state law.

Different states have interpreted the law differently, the petition said.

“These acknowledged divisions — involving over half of the country — lead to intolerable uncertainty in an area of law where certainty is needed most: adoption and custody proceedings that involve children,” Blatt wrote.

The Indian Child Welfare Act was passed because of the high number of Indian children who at the time were being removed from their homes by public and private agencies. The act gives the child’s tribe and family the right to have a say in decisions affecting the child.

In July, a split South Carolina Supreme Court cited the act in upholding the return of the Capobiancos’ daughter Veronica to her father, a member of the Cherokee Tribe. It was the first time South Carolina adoption law was weighed against the federal act.

In the 3-2 decision, the justices said the act confers custodial preference to the child’s father.

The child, who turned 3 last month, was adopted by the Capobiancos. They attended the girl’s birth and cared for her thereafter. She has been given the name “Little Star” by the Cherokee.

The girl’s biological father later sought custody, which he was granted by a South Carolina family court late last year. He arrived in Charleston last New Year’s Eve with his parents and took the girl back to Oklahoma.

The adoptive parents appealed the family court decision to the state Supreme Court.

In the petition to U.S. Supreme Court, Blatt said the issues go beyond the South Carolina case.

Confusion over the act “spawns litigation that permanently and tragically disrupts established family units” and undermines states’ ability to deal with domestic relations issues, she wrote.

“Only this court can resolve two outstanding issues central to the applicability and administration of a federal statute that impacts thousands of custody cases and countless individuals affected by those proceedings,” she wrote.

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